THE HIGH COURT
			No. 1628P/2000 
BETWEEN
MICHAEL COLIN GEOFFREY McMULLEN
			PLAINTIFF
AND
GILES J. KENNEDY 
(Practising under the style and title of Giles J. Kennedy & Co., Solicitors)
			DEFENDANT

Judgment of Mr Justice Aindrias Ó Caoimh delivered on 18th day of October 2001
This is an application on behalf of the Defendant for 
(a)	An Order pursuant to the inherent jurisdiction of this Honourable Court that the within proceedings be dismissed
(b)	In the alternative an Order that the action be dismissed or struck out on the grounds that the pleadings disclose no reasonable cause of action or are frivolous or vexatious pursuant to Order 19 Rule 28 of the Rules of the Superior Courts
(c)	In the alternative an Order that such parts of the proceedings as are unnecessary, scandalous or tend to prejudice the fair trial of the action be struck out pursuant to Order 19 Rule 27 of the Rules of the Superior Courts or in the alternative pursuant to the inherent jurisdiction of this Honourable Court.
On the 10th of February 2000 the Plaintiff issued a Plenary Summons in the High Court.  In the General Indorsement of Claim to the Plenary Summons the claim is stated as follows:
“The Plaintiff’s claim is that on or about the 28th day of April 1989 the Defendant in the full knowledge of the implications and consequences of his actions to use and employ undue influence, improper incentives and coercion to induce Mr Noel A.E. Clancy S.C. to collaborate and undertake to give evidence without reference to privilege in the action entitled Michael Colin Geoffrey McMullen, Plaintiff -v- Hugh A. Carty and Ors practising as Kent Carty & Co. of 48 Parnell Square, Dublin 1 to the complete detriment of his lay client’s position in general and particular; which conspiracy arranged by this Defendant Mr Kennedy was successful in defeating a well set out and just complaint, but which subsequently resulted in Mr Clancy’s being found guilty of breaches of the code of conduct for Barristers and also negligent by the High Court by Judgment of Mrs Justice Catherine McGuinness.  The Plaintiff seeks a declaration and damages in relation to the above as set out in his Statement of Claim”  

The Plaintiff thereafter delivered a Statement of Claim.  In his Statement of Claim at paragraph 3 he says that the action primarily at issue in these proceedings was an action in negligence which the Plaintiff felt obliged to bring against his former Solicitors Kent Carty & Co. of 48 Parnell Square, Dublin 1, record number 1988/6218P.  At paragraph 4 of the Statement of Claim he states as follows:
“At or about the time that the Defence in the action described in paragraph 3 had been filed, on or about the 28th day of April 1989 the Defendant improperly secured the collaboration of this Plaintiff’s Senior Counsel, Mr Noel A.E. Clancy who at that time was continuing to represent the Plaintiff herein”. 
The Statement of Claim then refers to a letter written by the Defendant to his Principals, Admiral Underwriting Agencies (Ireland) Limited of 1 Seething Lane, London EC3N 4NH, who were the underwriters to his clients Kent Carty & Co. 
The Statement of Claim then sets forth that under the heading “General Comment” the Defendant included the following paragraph:
“On Friday, 28th of April 1989, our Mr Kennedy took the opportunity to have an unofficial without prejudice word with Mr Clancy.  He advised Mr Clancy as to what was happening to assess Mr Clancy’s attitude.  Mr Clancy advised that as far as he was concerned the claimant did quite well and he would be in a position to give evidence that the claimant was advised of the situation.  We were aware at the time of our discussion, that Mr Clancy was acting for the claimant instructed by Messrs O’Connors in respect of a rather serious motor accident.  Accordingly, it would appear as if Mr Clancy may still have some influence over the claimant.  As a tactic, we indicated to Mr Clancy that our client, the insured herein wished to join him in the proceedings and we were not keen to do so.  This ‘little chat’ might provide an opportunity and incentive to Mr Clancy to dissuade the claimant ..... if this tactic does not prove successful, and we doubt if it will, the case will simply have to go to trial.”

The Statement of Claim then proceeds to state that the Defendant Mr Kennedy never varied the tryst he had obtained from Mr Clancy and the said letter was included in the “brief for trial of action” in the case against Kent Carty & Co. No.6218P.  The Statement of Claim proceeds:
 “The Plaintiff’s case against his former Solicitors was heard in the High Court Dublin before Miss Justice Mella Carroll on the 5th, 6th and 7th of May 1992 and was dismissed.  The Plaintiff appealed the matter to the Supreme Court which was heard in December 1997.  Judgment was handed down in January 1998.  In his final brief submissions to the Supreme Court in December 1997, Mr Andrew Bradley S.C. told the three Judges that he doubted if he could have succeeded in resisting the complaint of this Plaintiff without the evidence of Mr Clancy.”
  
At paragraph 9 of the Statement of Claim it is claimed that in the interim Mr Clancy had been found guilty of the breaches of the code of conduct for Barristers by the Barristers Professional Conduct Tribunal and also negligent by the High Court in the case record number 1995/8142P brought against him by Michael McMullen the Plaintiff herein.  At paragraph 10 of the Statement of Claim it is alleged that on the 3rd of September 1999 following a reading of her reserved Judgment in the above case cited at paragraph 9 Mrs Justice Catherine McGuinness handed certain files to the Plaintiff one of which he had never seen before.  At paragraph 11 it is stated:-
“Mr Kennedy’s graphic and disturbing letter formed pages 13 - 19 of the said file which was marked as described in paragraph 7, enclosed with a perspex over cover bearing the names Holmes O’Malley Sexton Solicitors of 45 Pery Square, Limerick.  The entire file had been provided to Mr Clancy’s Solicitors by Giles Kennedy”.  

The Statement of Claim then sets forth the relief which the Plaintiff seeks in these proceedings and I quote same as follows:
“A Declaration that contrary to law, natural justice and the right of access to the Courts the Defendant acted improperly in putting to the Plaintiff’s counsel ‘incentives’ to ensure by underhand, deceitful and coercive means that the said counsel, Mr Clancy, complied in the giving of privileged testimony against his lay client, the Plaintiff herein (whether or not the said evidence is deemed to have been true).”

The Statement of Claim then sets forth that the Plaintiff claims damages for 
“(a)	Unlawful and improper interference in the just resolution of a well set out claim in negligence in a matter which in normal circumstances is well within the day to day knowledge of a qualified practitioner.
(b)	Damages and or Punitive Damages for engaging in improper manipulation of evidence which should not have been given in the manner in which it was or at all, to the complete detriment of the Plaintiff and the due and apposite resolution of a civil claim in negligence.
(c)	Damages for entering into a conspiracy which as an officer of the Court and a practitioner of law and as an agent for his Clients’ underwriters/insurers (Admiral Ireland) the Defendant would positively have been fully aware to be a dangerous and manipulative arrangement.
(d)	Damages/costs and expenses incurred as a direct result of the said interference; these to include the costs of the Plaintiff’s own Solicitors who brought the action against Kent Carty, namely Collins Crowley & Co. together with the taxed bill of costs which the Defendant is presently using as a threat of bankruptcy as against this Plaintiff.
(e)	Damages for the distress and shame heaped upon this Plaintiff in his losing his action against his former Lawyers, in whom he had placed such trust, the extreme worry of being threatened daily with a hearing in bankruptcy by this Defendant with his bills, which this Defendant was at all times fully aware had been attained fraudulently and with the unfair advantage of the knowledge that as early as May 1989 the compliance of the Plaintiff’s former counsel, Mr Clancy, had been achieved with “little chats” “incentives” and improper coercion.  
(f)	General damages for the complete disruption of the Plaintiff’s life and well being.
(g)	Such further and other relief as the Court shall deem fit and proper.
(h)	The costs of this action.”
A detailed Notice for Particulars was served by the Defendant on the Plaintiff and these were replied to on the 29th of March 2000 by the Plaintiff.
The defendant’s motion is grounded upon an affidavit of Giles Kennedy.  At paragraph 3 he says that the plaintiff claims by reason of actions on his part Mr Noel A.E. Clancy gave evidence in proceedings between the plaintiff and his former solicitors Kent Carty & Co. notwithstanding the fact that as Mr McMullen’s counsel Mr Clancy was subject to a duty of confidentiality such that his evidence was privileged.  The same issue was raised by Mr McMullen in those other proceedings record number 282/93 in which  the Supreme Court gave judgment on the 27th of January 1998.  Mr Kennedy refers to the judgment of the Supreme Court of that date.  He says that it appears therefrom and particularly pages 10 and 11 thereof that it was held that where as in that case a client sues his solicitor he impliedly waives the privilege of confidentiality.  Accordingly he says that he is advised by counsel and believes that the claim being made by Mr McMullen in these proceedings is not sustainable.
Mr Kennedy sets forth the background to the proceedings.  He says the background to the proceedings are the High Court proceedings to which he has referred and which the Supreme Court gave judgment on the 17th of January 1998 in which Mr McMullen sued Kent Carty & Co.  He says that on behalf of underwriters his firm was instructed to defend Kent Carty.  He says that as is normal practice, he prepared a note for the underwriters, setting out the relevant considerations.  He has exhibited a copy of the report which he sent to his underwriters.  He says that it appears from this report it was his view that Mr McMullen the Plaintiff herein would certainly fail in his claim against his former Solicitors Kent Carty & Co., but that he was likely to proceed irrespective of that probable outcome.  He says that as further appears, he sought as far as reasonably possible to avoid the proceedings going further because they would incur unnecessary cost to nobody’s benefit.  He says that in that regard as a result of those proceedings being pursued by Mr McMullen costs were ordered against him which have been taxed in an amount in excess of £50,000 with interest.  Mr Kennedy says that the Plaintiff has made no effort to pay these costs and papers are presently with the County Sheriff.  He says that in the context of these proceedings it is significant that Mr McMullen is aware of these facts and that if necessary bankruptcy proceedings will be pursued.  
Mr Kennedy then states that the report to which he has referred and exhibited is a confidential report and one which is clearly privileged.  He says that from enquiries and indeed from reading the Statement of Claim and replies to particulars furnished in these proceedings by Mr McMullen he has tried to ascertain how Mr McMullen came upon this document.  He says that it would appear that after Mr Clancy gave evidence against Mr McMullen, Mr McMullen issued proceedings against Mr Clancy which were heard in the High Court by Mrs Justice Catherine McGuinness in which a reserve judgment was given on the 3rd of September 1999.  He says that in the course of the proceedings a booklet of documents namely, the brief prepared by him for his client containing a booklet of pleadings in the case against Kent Carty & Co., was handed into court.  He says that he believes that the booklet that was handed into court by Holmes O’Malley Sexton Solicitors for Mr Noel Clancy opened on the page containing the defence delivered by Mr Kennedy’s firm for and on behalf of Kent Carty & Co.  Mr Kennedy says that he cannot be sure of this as he was not in court but he has been advised by Mr Hugh Carty who was in court on subpoena served by the Plaintiff Mr McMullen, that he handed nothing into court during the course of the trial.  Mr Carty would have been the only person other than counsel and his principals entitled or authorised to have possession of the brief of papers referred to.  He says he is advised that at the conclusion of the proceedings, McMullen v. Clancy, the papers handed into court during the course of the trial were returned in the ordinary course.  He says that by a mistake the book of documents containing his report to his principals was handed to Mr McMullen by the Court Registrar in circumstances where Mr McMullen allowed the Registrar believe the papers belonged to him.  Mr Kennedy says that obviously this booklet does not belong to Mr McMullen and he is not entitled to possession of same.  Mr Kennedy proceeds to state that he has been advised by the solicitors acting for and on behalf of Mr Noel Clancy that on the 12th of October 1999 he clarified exactly what had happened with regard to the booklet.  Mrs Justice McGuinness stressed that anything handed into court was not necessarily part of the evidence in the case.  She pointed out to Mr McMullen that the book which had been handed into her was to put into evidence one particular document (the defence in the High Court action against Kent Carty).  It is stated by Mr Kennedy that Judge McGuinness stressed to Mr McMullen that the remainder of the book was not part of the evidence.  Mrs Justice McGuinness confirmed that she had not read the remainder of the booklet.  
Mr Kennedy says at paragraph 6 of his affidavit that as appears from the Statement of Claim these proceedings have now been issued on the basis of a paragraph or, more particularly, he claims a sentence contained in his report to underwriters.  He says that he is advised by counsel and believes that nothing in that report supports the claim being made by Mr McMullen in these proceedings.  Mr Kennedy says that it is the Plaintiff’s claim that he persuaded Mr Clancy to give evidence without reference to the privilege which Mr McMullen claims exists.  He says however that there is no suggestion in that passage that he provided any encouragement to Mr Clancy in respect of giving evidence.  He says that for the avoidance of doubt he confirms that he did not do so nor did he attempt to and Mr Clancy simply volunteered the information that he would be in a position to give evidence at the trial.  Mr Kennedy proceeds to set forth in his affidavit that not only is the Plaintiff estopped from the claim he makes in this action, but by reason of the manner he obtained the evidence, the action constitutes an abuse of the process of the court and furthermore the document upon which he seeks to rely is not evidence to support his case.  
Mr Barron of counsel traced the history of the proceedings involving  the Plaintiff Mr McMullen, including the circumstances in which it appears that Mr McMullen obtained possession of the documentation in the form of a memorandum from Mr Kennedy to his client made in the context of the action against Kent Carty & Co., Solicitors.  
It was submitted that Mr McMullen as the Plaintiff cannot have suffered any damage by reason of Mr Clancy having given evidence against him in the action taken by him against Kent Carty as Mr Clancy was at all times a witness who was both competent and compellable.  It is submitted by counsel, whatever about the precise basis of the Statement of Claim, the claim is in essence that the Plaintiff has suffered loss because Mr Clancy gave evidence.  Counsel refers this Court to the decision of the High Court in the case of Barry v. Buckley [1981] I.R. 307 where the High Court exercised its inherent jurisdiction to order that the Plaintiff’s action be struck out.  In that case Costello J. (as he then was) having referred to Order 19 Rule 28 of the Rules stated that apart from Order 19 the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case.  Costello J. at page 308 of the report indicated that the principles on which the court exercises this jurisdiction are well established.  Basically its jurisdiction exists to ensure that an abuse of the process of the courts does not take place.  So, if the proceedings are frivolous or vexatious they will be stayed.  They will also be stayed if it is clear that the Plaintiff’s claim must fail.  In the same case Costello J. stated at page 308 as follows:
“This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or an agreed correspondence.  If, having considered the documents, the court is satisfied that the Plaintiff’s case must fail, then it would be a proper exercise of its discretion to strike out the proceedings whose continued existence cannot be justified and is manifestly causing irrecoverable damage to a defendant.”

In this case Mr Barron points out that the Defendant Mr Kennedy relies on this authority by reason of the decision of the Supreme Court in the case against Kent Carty which Mr McMullen lost.  On this basis it is submitted that Mr McMullen cannot succeed in the instant proceedings.  Counsel further refers this Court to the authority of Sun Fat Chan [1992] 1 I.R. 425 where McCarthy J. referred to the decision of Costello J. in Barry v. Buckley.  In that case he stated that he expressed no view upon the decision in Barry v. Buckley save to comment that applying the underlying logic, the defendant may be denied the right to defend an action in a Plenary hearing if the facts are clear and the defence is unsustainable.  McCarthy J. stated as follows:
“By way of qualification to the jurisdiction to dismiss an action at the Statement of Claim stage, I incline to the view that if the Statement of Claim admits of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed.
Generally, the High Court should be slow to entertain an application of this   kind and grant the relief sought.  
Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture.  With that qualification, however, I recognise the enforcement of  a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour.  The procedure is peculiarly appropriate to actions for the enforcement of contracts, hence it is likely that the subject matter of the contract would, but for the existence of the action, be the focus of another contract.”

It is submitted by counsel that if what Mr Kennedy is alleged to have stated to Mr Clancy was wrong that this could only have harmed the Plaintiff Mr McMullen if Mr Clancy had dissuaded him from bringing his claim.  This did not happen.  It is submitted by counsel that no suggestion exists of Mr Clancy having approached Mr McMullen and therefore whatever Mr Kennedy may have hoped might happen did not in fact happen.  It is further submitted by counsel that the document relied upon by the Plaintiff is privileged.  It is submitted that it is a confidential report to the underwriters.  This refers to a conversation Mr Kennedy had with Mr Clancy.  It is submitted that the report discloses Mr Kennedy’s thought process which was that Mr Clancy might be motivated to dissuade Mr McMullen from pursuing his cause of action against his former Solicitors.  Mr Kennedy describes this as a “tactic” in the report to the underwriters.  It was submitted by counsel that, however critical the court might be of this, Mr Kennedy was clear that Mr McMullen’s claim would fail and the net result would be that substantial costs would be incurred which his underwriters would have to meet because Mr McMullen was a determined person who would proceed irrespective of the weakness of his case.  On this basis it is submitted by counsel that there was no attempt to interfere in the administration of justice and that there was no conspiracy either.  It is submitted that Mr Clancy was not a party to Mr Kennedy’s thought process.  It is submitted that Mr Kennedy’s fears have in fact been realised.
With regard to the document contended to be privileged, it is further submitted by counsel that even if the Court has regard to this document that it does not admit any conspiracy whatsoever. 
In reply to the submissions by Mr Barron of counsel, Mr McMullen submitted that the motions before the Court raised many issues.  He alleged that the Applicant had put a very selected selection of items before the Court for the record.  He said the case is about the just expectations laid down to consumers of legal services as to what they will expect from officers of the court in defending a claim.  He said that there is no question but that he has well founded complaints and on this basis he alleges that his claim is not vexatious or frivolous.  Mr McMullen referred to the documentation in his possession and how it had been before the High Court in the hearing before Mrs Justice McGuinness.  He referred this Court to what was stated by Mr Kennedy in his affidavits of the 14th of October, 2000.  Mr McMullen submits that it is beyond the bounds of credibility that Mr Clancy forgot “the little chat” that Mr Kennedy had with him.  In the hearing before me Mr McMullen indicated that the file had been handed to him by the Registrar having been handed to the Registrar by the learned High Court Judge and that this file contained Mr Kennedy’s letter.  It was a brief prepared in the terms of the action taken against Kent Carty & Co., Solicitors.  He stated that it was contained in a plastic over-cover bearing the name Holmes O’Malley & Sexton, the Solicitors for Mr Clancy.  Mr McMullen submits that the letter shows that everyone (other than the judge and the Plaintiff himself Mr McMullen) was aware of Mr Kennedy’s incentives which he put to Mr Clancy.  He stressed that Mr Clancy had been acting for him.  He said that in 1985 Mr Clancy was a barrister with over twenty years standing.  He asked rhetorically why would a man at the zenith of his career succumb to a “little chat” knowing that he would leave himself open to breaking the code of conduct and a suit in negligence from his client who had placed a great degree of working confidence in his ability, added to which all parties were aware of the erosion of the sanctity of Rondel v. Worsely [1969] 1 A.C. 191.  In this regard Mr McMullen referred to the removal of the pre-existing immunity attaching to the work of barristers as decided by the courts in England.  Mr McMullen submitted that the power of Mr Kennedy’s persuasion was sufficient for Mr Clancy to lay himself open to his career being ended ignominiously.  Mr McMullen submitted that as far as issues of credibility are concerned a great degree more lay behind the “little chat”.  He said that a web of intrigue existed to dump the client.  This he said was unacceptable.  Mr McMullen submitted by reference to the documentation that there must have been some doubt in the mind of Mr Kennedy in relation to the prospects of defending the action taken by Mr McMullen.  He submitted that compliance on the part of Mr Clancy was crucial.  Mr McMullen construed the correspondence as imagined to Mr Kennedy saying that they needed Mr Clancy to get them off the proverbial hook.  
Mr McMullen indicated that in the context of the earlier proceedings he was very aggrieved and very upset that the matters went so wrong and he quoted George Bernard Shaw as saying that the professions are a conspiracy against the public.  Mr McMullen queried why Mr Kennedy would have a ‘without prejudice’ word with Mr Clancy.  He said that the various matters put together showed that Mr Kennedy didn’t want the matters to go any further.  Mr McMullen referred to the fact that Mr Kennedy said quite clearly that he told Mr Clancy that his clients were mindful to include him (Mr Clancy) as a co-defendant but that he “the ever obliging Mr Kennedy” was not keen to do so.  Mr McMullen stressed that Kent Carty needed Mr Clancy.  Mr McMullen submits that an agreement was reached between Mr Kennedy and Mr Clancy in a ‘without prejudice’ conversation.  He queried why Mr Clancy put his career so much at risk at a time when he was still acting for his client.  He queried why he gave different evidence to that outlined in the paragraph in the letter referred to.  Mr McMullen submitted that a danger existed if the court agrees to the motion being brought by Mr Kennedy that this will give a green light to this kind of behaviour to members of the legal profession.  He submitted that there is a triable issue here.  He submitted that there are issues of credibility and that at the very least the matters should be sent forth for a full hearing.  He submitted that he is entitled to a full hearing of the matter.  He submitted that the manner in which Mr Kennedy secured compliance by Mr Clancy contaminated loyalties which lay elsewhere.  With regard to whether the document containing the memorandum from Mr Kennedy is a privileged document, he submitted that once he had cited the document that privilege ceased to exist.  Furthermore, he submitted that once Mr Kennedy exhibited the report himself he could not rely upon it as being a privileged document.  While the document may have been on a file handed into court he is not privy as to whether Judge McGuinness had the benefit of the document in her dealings with the case.  Mr McMullen submits that once the document in question has been seen by him as a lay litigant that any privilege that may have attached to the document ceases to exist.  He further submits that as a lay litigant he is not obliged to hand the document back.  He submitted that the affidavit of Mr Kennedy leaves a lot to be desired.  He submitted that the issues in the instant proceedings are not in fact the same as those in the earlier proceedings.  With regard to the letter to Admiral Ireland he submits that this is evidence of a conspiracy.  He submitted that all the parties namely Mr Kennedy and Kent Carty and Co., Solicitors knew what they were doing at the time.  He submitted that when things go wrong the legal profession get together to defeat the client.  With regard to the nature of the document claimed to be privileged Mr McMullen submitted that these are not mere thought processes.  They are the workings of experienced lawyers used to writing these type of reports.  He queried why Mr Kennedy had a “little chat” with Mr Clancy.  He suggested that there was a threat to join Mr Clancy as a co-defendant.  He submitted that Mr Kennedy wanted to be quite sure that he could defeat the claim taken against his clients.  His submission to this Court is that if one takes an action against lawyers there should be a level playing field at least.  Mr McMullen categorised and quoted Mr Kennedy as saying to Mr Clancy that he was working for a man of unstable mind.  He indicates that he would try this approach and if that didn’t work he would try something else.  He indicated the approach taken was that if Mr Clancy were to ‘toe the line’ the Defendant in  the action would not have to join Mr Clancy as a Defendant.  
The Plaintiff was permitted by me to file a further affidavit to defend the application brought by Mr Kennedy.  This affidavit was filed by him on the 28th of November 2000.  In reality the affidavit contains material which is essentially by way of submission.  He states that were it not for the arrangement made in May 1989 by Mr Kennedy to ensure that Mr Clancy would give evidence which would be helpful to the defence that he would not have been called.  He said that the same universal standards of justice ought to be upheld whether or not all matters are important issues.  He says that the agreement was made well before the trial and the ‘dye was cast’ for the course by which Mr Kennedy in consultation with his clients and counsel would run the defence and the action.  He says that there was particular poignancy and compulsion in the threats to Mr Clancy by Mr Kennedy when he stated that his clients Kent Carty “wished to join him in the proceedings”.  He says that this is because (whether or not Mr Clancy was aware of the contents of the defence which Mr Kennedy had just filed on behalf of Kent Carty), in the evidence put before his own trial before Mrs Justice Catherine McGuinness in July 1999 (which Mr Clancy chose not to refute), there were included the transcripts of telephone conversations of the 19th of July 1984 and the summer of 1987 between Mr Clancy and Mr McMullen.  He says that from these it is abundantly clear that Mr Clancy was aware of the opinions held about him by Kent Carty and expressed his opinion of Kent Carty in retaliation.  Mr McMullen states that Mr Clancy was sufficiently coerced by Mr Kennedy to put his own career in jeopardy and form this dangerous liaison.  He states
 “that this confederacy, as stated was entered into at such an early date as to ‘cast the dye’ and ensure that the Complainant, this Plaintiff, would be conveniently defeated.”

Mr McMullen states that the tactic proposed by Mr Kennedy to Mr Clancy to attempt to dissuade Mr McMullen from continuing with his action against his former Solicitors Kent Carty was not followed through.  
With regard to the case of Barry v. Buckley cited by Mr Barron on behalf of the Defendant Mr Kennedy, Mr McMullen says that a clear distinction exists between the issues in that case and the present action.  He says that the contents of the report of Mr Kennedy raise complex issues relating to the integrity and propriety of the actions of legal officers in the preparation of a defence.  He says that these issues ought to be tested in open court and scrutinised with rigorous cross-examination.  
Mr McMullen points out at paragraph (f) of his affidavit that, in the action against Mr Clancy, Mr Carty adamantly dissociated himself from any involvement or knowledge of any arrangement with Mr Clancy to give evidence in May of 1992 and went so far as to swear that had he known about any approach to Mr Clancy he would have stopped it.  Mr McMullen says that Mr Carty maintained this position robustly and furthermore so securely cemented was the tryst obtained by Mr Kennedy that Mr Clancy emphatically denied any approach to himself by either party in his submissions to the Barristers’ Conduct Tribunal.  
Mr McMullen says that the instant case is very different from those relied upon by counsel for the Defendant Mr Kennedy.  Mr McMullen says that the importance of the alliance is underlined by Mr Kennedy in his letter to Admirable Ireland in which he admits that his clients “may have a case to answer”.  He states that it does not follow that because Mr Clancy may have been “competent and compellable”, that in issuing his proceedings against Kent Carty, Mr McMullen also issued either an invitation or a summons to Mr Clancy to join in the affray.  Mr McMullen submits that it does not follow that the judgment of the Supreme Court in the case against Kent Carty applies to the facts and events as they occurred.  Mr McMullen states that his action against Kent Carty for negligence was dismissed on the pivotal evidence of his counsel Mr Clancy.  He says that no one attempted to corroborate his testimony.  Mr McMullen submits that in this action there are issues to be tried which ought to go to full hearing and that the affidavit and letter of the Defendant Mr Kennedy show that there is an issue of credibility and further that the letter records the actions and intentions of an experienced practitioner and it is not open to interpretation such as thought processes or the like.  He concludes by stating in his affidavit that the letter records strategy which contained coercion which resulted in a confederacy to defeat the Complainant (sic).  On this basis Mr McMullen asks this Court to dismiss the Defendant’s Motion on the general grounds that the interests of justice and the proper progress and determination of this well founded complaint will not be served by being prejudiced or extinguished in this manner.  In further submissions made to me in court Mr McMullen referred in some detail to the affidavit of Mr Kennedy.  He said that there had to be some inducement for Mr Clancy to behave in the manner which he did and that he felt instinctively that there was something very rotten.  Mr McMullen having referred to a portion of the transcript of the proceedings heard before Mrs Justice McGuinness on the 22nd of July, 1999 and in particular evidence given by Mrs Madigan submitted that that witness had known that Mr Kennedy had arranged everything in May of 1999.  He submitted that it was not good enough for officers of the court to act in this manner.  He submitted that they were parties to a conspiracy.  He said they knew that it was not a normal approach and on this basis he submitted that the instant case should go to a full trial.
Mr McMullen referred me to an exhibit in his affidavit being  a letter written by Mr Clancy on the 10th of May 1995 addressed to the Barristers’ Disciplinary Tribunal. In it Mr Clancy said that neither party had thought to invite him to a consultation prior to the hearing.  Mr McMullen confines himself to submitting that it stretches the imagination that all these parties forgot to consult with Mr Clancy.  He submits that they were all in it together.  He then indicated that Mrs Justice McGuinness had handed him the letter at issue in these proceedings and the whole thing was exposed.  He submitted that all were aware of the letter.  This letter was given to Kent Carty and used in the brief for the defence in the action taken by Mr McMullen against that firm.  That action was handled by Holmes O’Malley & Sexton Solicitors.  
Mr McMullen referred this Court to a portion of the transcript in the appeal before the Supreme Court where submissions were made by Mr Bradley to the effect that Mr Clancy was an essential witness.  In the course of his submissions Mr Bradley stated that he knew that Mr McMullen felt aggrieved that Mr Clancy broke what he called the Client- Barrister relationship but pointed out that Mr McMullen was legally represented in the High Court and no objection was taken by his legal representatives to Mr Clancy giving evidence and no submissions were made whether it was correct or proper for him to give that evidence.  Mr McMullen stresses that the inherent jurisdiction being invoked by the Defendant in the instant proceedings should be used sparingly.  Mr McMullen referred to the fact that the jurisdiction was generally exercised in circumstances of a contractual relationship or in actions involving specific performance.  He submitted that in no way could the instant case be compared with a case of specific performance.  On this basis he submits that the considerations stated do not apply.  Mr McMullen stressed that by reference to the letter from Mr Kennedy to his clients that he did not want to alienate Mr Clancy and has secured his co-operation by a threat.  Mr McMullen further complained that he had been faced with threatened bankruptcy proceedings since 1999.  In this regard Mr McMullen refers to his supplemental affidavit sworn on the 11th of December 2000.  Mr McMullen indicated that he had been threatened with bankruptcy proceedings and that the matter became so acute that   on the 10th day of February 2000 he issued a Plenary Summons in the instant proceedings.  He indicated that he brought a motion before the Court for judgment in default.  He pointed out that this matter had been put back on the basis that it was not appropriate to hear that motion before the outcome of the instant motion.  Mr McMullen submitted that it ill behoves Mr Kennedy to harass him with an affidavit which Mr Kennedy knows to be incorrect.  He submitted that in the exigencies of this predicament he may have to seek the protection of the Court.  
Mr McMullen complains that the motion brought by the Defendant has sought to reverse the roles of the parties.  He says that he has had to bring in an inordinate amount of evidence before this Court.  He says that this is unusual and uncalled for given the fact that Mr Kennedy is aware of all the things that are going on.  
Mr Barron in reply to the submissions made by Mr McMullen refers to the evidence given by Mr Carty and Mrs Madigan.  While Mr McMullen says that this evidence supports his case Mr Barron relies on the fact that these witnesses say that they did not seek to influence the evidence given by Mr Clancy.  Furthermore Mr Barron points out that there is nothing to show that the evidence of Mr Clancy was in any way untrue whatever about the circumstances giving rise to the giving of that evidence.  Furthermore, Mr Barron submits that Mr McMullen has failed to address the fundamental point which is that he has failed to show that he has suffered by reason of the fact that Mr Clancy gave evidence against him in the action taken by him against Kent Carty Solicitors.  He points out that both the High Court and the Supreme Court have found that no loss was suffered by the Plaintiff by reason of the evidence of Mr Clancy.  The initial action was settled.  The judgment delivered by Mr Justice Lynch for the members of the Supreme Court indicated that as a matter of probability Mr McMullen would not have succeeded in any event had he been able to re-enter the proceedings before the High Court.  It is submitted by Mr Barron that the same finding was in fact made by Mrs Justice McGuinness.  Mr Barron submits that no loss has been shown to flow from any alleged wrongdoing.  Counsel has referred me to the judgment of Mrs Justice McGuinness where she quotes at pages 23, 24 and 25 from a portion of the judgment of Lynch J. in the Supreme Court.  In her conclusion she said that she has accepted that there is no cogent evidence whatsoever before the Court which would establish that the Defendant, that is Mr Clancy, entered into an arrangement or conspiracy with Messrs Kent Carty and other Solicitors in regard to the evidence he gave in the negligence action.  However Mrs Justice McGuinness concluded that Mr Clancy was in fact invited to a pre-trial consultation.  This may have slipped his mind at the time of the Bar Council investigation when he told the Disciplinary Inquiry that he was not invited to a consultation.  She concluded that he did not attend any such consultation although he was invited to do so.  At page 28 of her judgment Mrs Justice McGuinness referred to the fact that Lynch J. pointed out that both Mr Barr Senior Counsel and Mr Fitzsimons Senior Counsel strongly advised that the Plaintiff had very little chance of success in the nuisance action taken by him.  She points out that this view was supported by that of Mr Sweeney a Junior Counsel experienced in that area of law and by Messrs Kent Carty, the Plaintiff’s Solicitors.  Mrs Justice McGuinness concluded that the Plaintiff did not have a realistic chance of success in the nuisance action.  She concluded that he therefore did not suffer loss stemming from any negligent advice which may have been given to him at the time of the settlement by Mr Clancy.  Based upon these facts it is submitted by Mr Barron that the Plaintiff can point to no loss or damage arising from the matters complained of in these proceedings.  Mr McMullen in suing Mr Clancy on the basis of the evidence given by him did not succeed and it was held by the Court that he would not have succeeded in his earlier action in any event.  Mr Barron has stressed the fact that Mr Clancy was both a competent and a compellable witness.  Mr Barron submits that the Plaintiff cannot show loss simply because he hasn’t suffered any.  Finally Mr Barron refers to the fact that the Plaintiff has indicated that he initiated these proceedings arising from the threat of bankruptcy proceedings being taken against him.  It is submitted that he cannot oppose those proceedings.  Mr Barron has referred to the conclusions of Mrs Justice McGuinness at pages 30 and 31 of her judgment where she indicated that the picture painted by the Plaintiff of himself as a vulnerable person in distress has little relation to reality.  Mr Barron has submitted that the real aim of the Plaintiff’s action here is to embarrass Mr Kennedy to seek to have him drop the bankruptcy proceedings taken.  It is submitted that the courts must treat Mr McMullen as any other litigant.  
Further submissions were made to me by Mr McMullen in which he referred to the Statement of Claim setting out the nature of the case being made by him and referring to the affidavits and exhibits.  He said that he was dependent on Mr Clancy at a time when he thought he was a friend.  He pointed out that the judgment of McGuinness J. is under appeal.  He said that the losses are set out in the Statement of Claim.  Mr McMullen submitted that the case against Kent Carty would not have gone to the Supreme Court if evidence had not been given by Mr Clancy.  Mr McMullen submitted that the attempt by Mr Kennedy to use the bankruptcy proceedings amounted to an abuse of the Court.  
Conclusions
Having considered all of the documentation furnished to this Court I am satisfied that the essential complaint of the Plaintiff is the fact that Mr Clancy gave evidence in the proceedings taken by him against Kent Carty Solicitors in circumstances where Mr Clancy was called as a witness on behalf of the Defendant in those proceedings having previously acted for Mr McMullen.  Insofar as the Plaintiff seeks to rely upon a letter addressed to a client of Mr Kennedy, the letter at best indicates an approach that was taken at the time to see whether the proceedings to be taken by Mr McMullen might be avoided and would not have to go to trial.  There is no suggestion in the letter that Mr Clancy was being put under any pressure to give evidence in those proceedings.  It is also clear that insofar as Mr Clancy gave evidence in those proceedings that the testimony given by him was not objected to at the time and therefore no question of privilege was raised in those proceedings.  Accordingly the claim for a declaration which the Plaintiff seeks is clearly one which cannot succeed.  With regard to the claim for damages I am satisfied that the Plaintiff in these proceedings seeks to litigate afresh what has been previously litigated by him and that he cannot proceed in this claim and show any damage to have been suffered by him by reference to the matters complained of in circumstances where Mr Clancy was both a competent and compellable witness in the action taken by Mr McMullen against his Solicitors.  In conclusion, while I accept that the jurisdiction invoked by the Defendant in these proceedings is one to be exercised sparingly I am nevertheless compelled to the conclusion that the Plaintiff cannot succeed in these proceedings and that in all of the circumstances that I should exercise the jurisdiction invoked in these proceedings and accordingly I will strike out these proceedings.